Partition Case Law Update

Florida Foreclosure Defense Law Firm, P.A.

Case law is based on precedents and judicial decisions from previous cases and attorneys rely on it when advocating for a client in court. In this blog we explore holdings that may be useful to our partition clients.

-Money Damages Unavailable in Partition

Morrison v. Smolarick, 334 So. 3d 675 (Fla. Dist. Ct. App. 2022)

Summary:  Homeowner who owned property with co-owner as joint tenants with the right of survivorship and who sued to partition the property and have it sold by private sale was not entitled to an award of money damages for reimbursable expenses.

What to take away from this case?  Partitions should not be filed to obtain an award of money damages.  The statute governing partition actions does not provide for the award of money damages.  Litigants can, however, obtain a credit against the proceeds of a partition sale.

-Homestead Property is Subject to Partition

Toussaint v. Toussaint (Fla. Dist. Ct. App. Aug. 28, 2024)

What to take away from this case?  Homestead character of a marital home does not prevent it from being partitioned between two former spouses.

-But what about Attorney’s Fees from Sale Proceeds?

Cauble v. Kaczmarski, 389 So. 3d 687, 687–88 (Fla. Dist. Ct. App. 2024).

What to take away from this case?  A party may be awarded his/her reasonable attorney’s fees and costs incurred in a partition action from the net proceeds of the private sale prior to dividing those proceeds between the parties.

– Use Caution when Raising Frivolous or Vexatious Arguments or Defenses Because there are Consequences

Casiano v. Casiano, 370 So. 3d 991 (Fla. Dist. Ct. App. 2023)

What to take away from this case?  Florida law recognizes that when a party raises frivolous or vexatious argument or defense, a the court may decline to award it attorneys fees. 

-Can a Co-Owner Partition a Marital Home while still married?

Blew v. Blew, 358 So. 3d 1232 (Fla. Dist. Ct. App. 2023)

What to take away from this case?  The court does not have authority to order partition of marital home prior to the final judgment in marriage dissolution cases, where husband and wife each own the home as tenants by the entireties. Fla. Stat. Ann. §§ 64.031, 64.051, 64.061(4), 64.071.

-Credit from Sale Proceeds for Expenses

Bailey v. Covington, 317 So. 3d 1223 (Fla. Dist. Ct. App. 2021)

What to take away from this case?  A co-tenant who bears the burden of paying a disproportionate amount and has responsibility for taxes, mortgage payments, insurance, maintenance, and repair is entitled to credit from the proceeds of the partition sale for the other co-tenant’s proportionate share of those expenses.

Contact an Orlando Partition Attorney and Property Law Lawyer Andrew Pascale, Law Offices of Andrew J. Pascale, P.A. to discuss your case. This blog does not constitute legal advice and is for illustrative purposes only.

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